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OCDW 12.05.16

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

State v. Matthew John Hovet, 2016 OK CR 26 (November 30, 2016): State Appeals; DUI: This is a State appeal in a DUI case out of Custer County where the Hon. Donna Dirickson, Special Judge, granted in part a motion to suppress the breath test because, relying on Oklahoma civil appellate opinions, the Board of Tests did not follow the proper rule-making procedures under the Administrative Procedures Act. The Court held that the failure of the Board to comply with the Act did not render the test results inadmissible. NOTE: This is another embarrassing opinion highlighting the dysfunction between the civil appellate courts in our State and the OCCA. The death penalty stay debacle of recent memory was a bitter and direct confrontation. This is yet another iteration of our civil courts ruling one way, and the OCCA disregarding it in the criminal context. The civil courts gave meaning to the Administrative Procedures Act, holding that the Board must follow it or the test results are not admissible in civil proceedings regarding revocation of driver’s licenses. Here, the OCCA appears to disregard the APA altogether. The analysis is particularly disturbing because statute requires breath tests to be conducted under the Rules of the Board of Tests. The OCCA recognized this law, but stated that the State did so in this case—it is just that the Board of Tests Rules were not in compliance with the APA. So, the State and police need to simply follow the Rules, regardless of whether they are enacted legally or not. This, according to the Court, goes to the “weight” of the evidence, not the admissibility.

Chancey Allen Luna v. State, 2016 OK CR 27 (December 2, 2016): Juveniles & Y.O.: Luna was convicted by jury of First Degree Murder in Stephens County (the Hon. Ken J. Graham, presiding), and sentenced to LWOP. Luna was just 16-year-old at the time of the crime. In this opinion, the Court vacated the sentence in light of Supreme Court precedent, holding that Luna is entitled to an individualized hearing on whether he is irreparably corrupt and permanently incorrigible beyond a reasonable doubt. NOTE: Judges Lumpkin and Hudson agreed that the sentence had to be vacated, but dissented to the parameters of remand on the basis that it expands Supreme Court precedent. Also, this case received significant media attention because it involved the apparently senseless shooting of an Australian baseball player in Stephens County.

Brian Edward Xavier Korona v. State, No. F-2015-938 (Okl.Cr., November 28, 2016) (unpublished): Domestic Abuse; Trial Procedure: Korona was convicted by jury in Tulsa County (the Hon. Patrick Pickerill, presiding) of Kidnapping, Rape, Domestic Assault, Violation of Protective Order, Larceny of Motor Vehicle, and Second Degree Burglary. The Court affirmed, but found error in the sentencing range instructions (for felony domestic abuse the range is 1 to 3; when charged after former conviction of two or more felony convictions the range is 3 to life). The jury was instructed that the minimum was 9 years, but the Court found no plain error since he was sentenced to 20 years. NOTE: During opening instructions, the trial court told them that Korona was charged “subsequent offense” which was error, but harmless.

Ricky Lynn Lyles, Jr., v. State, No. RE-2016-259 (Okl.Cr., November 29, 2016) (unpublished): Suspended Sentences: In this revocation case out of Washita County, the only witness was a DOC officer who presented records regarding the fact that Lyles did not report and failed to update his address. Lyles did not challenge the admissibility of the records on hearsay grounds, thus the Court limited its holding to the question of whether presenting the live witness satisfied the need for more than pure hearsay (i.e., just admitting the documents without a sponsor).

Tucker Ryan McGee v. State, No. F-2015-393 (Okl.Cr., December 2, 2016) (unpublished): Jury Instructions (Flight); Juveniles & Y.O.: In this case out of Custer County, McGee was convicted by jury (the Hon. F. Doug Haught, presiding), of First Degree Murder and sentenced to LWOP. This a case similar to the published Luna case, above, involving a juvenile sentenced to LWOP, and the Court remanded for re-sentencing. Also, the Court found error in a flight instruction, but it was harmless.

State v. Juan Carlos Guerra, No. S-2016-296 (Okl.Cr., November 28, 2016) (unpublished): State Appeals; Search and Seizure (Protective Sweep; Exclusionary Rule): This is an Aggravated Trafficking case out of Stephens County, the Hon. Ken Graham granted a motion to suppress, and the State appealed. In this opinion, the Court found the protective sweep lawful, and also applied the good faith exception of Leon.

TENTH CIRCUIT

No new cases.

UNITED STATES SUPREME COURT

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

Bravo-Fernandez et al. v. United States, No. 15-537 (U.S., November 29, 2016): Double Jeopardy; Inconsistent Verdicts: A jury convicted of bribery, but also acquitted on conspiracy which resulted in irreconcilably inconsistent verdicts. The convictions were vacated on appeal on grounds unrelated to the inconsistent verdicts. On re-trial, a Double Jeopardy claim was denied by the First Circuit. In this opinion, the Court affirmed, holding that issue-preclusion of Double Jeopardy does not bar re-trial in cases like this where the jury returned inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency.

VICTORIES

NANCY WALKER-JOHNSON, OIDS, advocated for a juvenile client, a 14-year-old girl, who made a list of people that she did not like. The school principal found out about “the list” and the girl was eventually charged with endeavoring to commit an act of violence based solely on her act of writing down the names. At oral argument on the accelerated docket, the Court ruled that the evidence was insufficient to support the charge (with opinion to follow), and reversed the adjudication with instructions to dismiss. Nice work, Nancy!

JAMES L. HANKINS, OKC, represented a college student in Stillwater charged in municipal court with having an unattended fire in his back yard, at a house where he lived with roommates. On a night of heavy drinking, one of the roommates lit an old futon on fire in the back yard, while the client was asleep. Police saw the smoke and ticketed the roommates, including the client after waking him up. The client wanted to fight it, so we had a trial at Stillwater Municipal Court. After hearing from the roommate, police, a fireman, and the client, the judge found the client not guilty. The City relied upon a statement by the roommate that both had started the fire, but the roommate denied saying such a thing; and the City also seemed to press the matter as strict liability, and I argued that it was a criminal offense that required scienter and some active involvement in setting the fire. Also, on an unrelated matter, I represent a client convicted in state court of molestation and rape which were affirmed on direct appeal. Judge Friot denied habeas relief and also a Certificate of Appealability, so I appealed to the Tenth Circuit, which issued a COA in this ORDER. This is not a win on the merits of what I think is a good confrontation/cross-examination claim, but obtaining COA’s from the Tenth Circuit in non-capital habeas cases is a difficult task, but it does happen.

HEARSAY

POLICE ETHICS: Oklahoma City defense attorney Thomas Hosty will present a seminar at Cameron University on “Police Ethics in Oklahoma: A Defense Perspective.”

PROSECUTORIAL DISCRETION: District Attorney Orville Loge (Muskogee) exercised his discretion and declined to prosecute a woman who left her infant inside a hot car all day that caused the child’s death.

MISTAKE: A reserve deputy handcuffed the Vanoss Principal at a basketball game based upon mistaken identity.

DECEMBER 15 & 16, 2016: The Seventh Annual Barry Albert mock trial CLE will be held at the Bar Center.

SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.com and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164th St., Edmond, OK 73013.

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